Habeas for Death Row Inmate Who Moved to Dismiss His Case

Last week the Ninth Circuit granted habeas to a death row inmate who had moved to withdraw his appeal from the district court's denial of habeas. Comer v. Schriro, --- F.3d ---, 2006 WL 2613669, Westlaw link, 9th Cir. link (9th Cir. Sept. 13, 2006) (Ferguson, J.).

The court began its recitation of the facts with the comment that they "are deeply disturbing," and they are. Robert Comer and his companion killed a man at a campground, stole his belongings and his dog, then bound and gagged two other campers (a man and a woman) and put them in their own truck, which Comer then drove. Comer sexually assaulted the woman several times. He also shot the dog he had stolen. The man and the woman escaped separately, the crime was reported, and police apprehended Comer and his companion.

The habeas challenge is not to the conviction, but to the death sentence.

The procedural history is complex. Boiled down, it's this: Comer was convicted in Arizona state court. His conviction was affirmed by the Arizona Supreme Court. His petition for post-conviction relief in the state courts was denied (all the way up). He petitioned for habeas corpus in the federal district court. In 1996, the district court ruled that he had procedurally defaulted on some of his claims; in 1997 it denied the remaining claims on the merits. In 1998, Comer filed a timely notice of appeal of the denial of his habeas petition. After that, he wrote to the state AG and the state trial judge, saying he no longer wanted to appeal; he wanted to die. The state moved to dismiss his appeal. He filed a pro se motion to dismiss his appeal, but his appointed counsel opposed dismissal. The Ninth Circuit bounced it back to the district court to determine whether he was competent to make that decision. The district court found that he was competent to make the decision to dismiss his appeal of the denial of habeas and that his decision was voluntary.

The Ninth Circuit affirmed the district court's determinations -- he was competent to waive the appeal and his decision was voluntary. BUT the court found that it must review the case nonetheless.

To allow a defendant to choose his own sentence introduces unconscionable arbitrariness into the capital punishment system. * * * Permitting such waiver allows the defendant, not the justice system with its attendant procedural safeguards, to determine whom the state will execute. Comer seeks death, yet the errors in his sentencing hearing prevent us from knowing if he is a member of that narrow class of individuals that the state is permitted to execute.
* * *
Thus, in spite of Comer's valid waiver, we must review the merits of his habeas claims on appeal. To do otherwise, and allow Comer to be executed despite the infirmities in his sentence, would be to deny him the dignity of being treated fairly and justly by a state that claims the power of life and death over his person.

After the court discussed a number of claims that it did not find persuasive, it agreed that Comer's due process rights were violated "when he was sentenced to death while nearly naked and barely conscious. . . . [H]is treatment during sentencing 'shocks the conscience' and warrants reversal of his sentence."

In the opinions I skimmed, I didn't see why Comer was not present at his trial or why he was sent to the sentencing hearing as he was, although there's a reference to his "compromised mental condition."

Comer was presented to the sentencing court not only in shackles, but nearly naked, with only a blanket covering his genitals, and slumped to one side in a wheelchair with blood oozing from his head wounds. His lack of clothing revealed to the court and the public his numerous and graphic tattoos, which cover most of his body. And the responses he mustered to the court's questions were cursory at best.

"Shocks the conscience"? Seems like it.

Later I found a news story that explains why he was nearly naked in court:

Barnett Lotstein, a special assistant Maricopa County attorney . . . said Comer was brought into the courtroom this was because he refused to get dressed and fought with detention officers.

"If there were any injuries to him it was of his own making," Lotstein said.

That contention is backed by Comer himself: In a letter last month to Assistant Attorney General John Todd, Comer said he was ready for a fight when he was scheduled to go to court. He said when they removed his leg irons, he kicked one officer.

"Of course that ended the dressing process and they got a blanket to wrap around me but I kept pulling it off, so they ended up tossing it in my lap, and into court we went," he wrote.

Appellate court orders new sentencing for death-row inmate, Ariz. Star, Sept. 13, 2006. I'm no psychologist, but this scene seems consistent with some sort of "compromised mental condition," as the court put it.


Judge Rymer dissented. Since Comer was competent to withdraw his appeal and had done so knowingly and voluntarily, "this case is over" and there is "no live controversy remaining between Comer and the State of Arizona."

Howard Bashman discusses the case at How Appealing. Doug Berman writes (and several readers respond) at Sentencing Law and Policy: Do you lose your right to die if sentenced to death row?

The sentencing issue is most important here, but note also the court’s comments about the prosecutor’s closing argument during the guilt phase of the trial:

As all of the other courts before us have done, we condemn the prosecutor’s remarks. At various times throughout closing argument, the prosecutor repeatedly referred to Comer as a “monster” and “filth,” analogized his crimes to a horror movie, and once called Comer a “reincarnation of the devil.” We also agree with the other courts, however, that the prosecutor’s remarks did not render Comer’s trial fundamentally unfair.

(The discussion goes on for a couple of pages.)

Filed in: cases, death-penalty, habeas, sentencing, Ferguson, Rymer, closing-arguments